Hardam Singh vs Dev Singh and Others

N.K. Agrawal, J.—These are two revision petitions by the defendants against the common order of the Civil Judge (Junior Division), Patiala, whether the defendants'' applications for the amendment of their written statements under Order 6 Rule 17, Civil Procedure Code, have been rejected. Identical amendments were sought in the applications filed by defendant No. 1 and defendant Nos. 2 to 4 separately.

Plaintiff filed a civil Suit for declaration to the effect that the judgment and decree dated September 20, 1990 passed by the civil suit No. 96/24.2.1990 by the Sub-Judge, 1st Class, Patiala, effecting Plaintiff''s right in the land are illegal, null and void. Plaintiffs case is that he never appeared in the suit which was decreed on September 20, 1990. Defendant No. 1 filed his written statement. Defendant Nos. 2 to 4 filed their joint written statement separately. Both sets of written statements are identical. They admitted that the plaintiff, Dev Singh, was served as a defendant in the earlier suit and he intentionally did not appear in the court. The defendants now wanted to amend the written statements so as to omit the words "intentionally not". They stated that it was inadvertently pleaded in the written statements that Dev Singh had intentionally not appeared in the earlier suit. It is a wrong admission.

Learned counsel for the defendants has argued that the averments made in the plaint as well as in the/written statement would make it clear that the admission contained in Paragraph 5 of the written statement was on account of mistake and inadvertence. The defendants were, therefore, right in law in seeking amendment.

It would be useful to see the averments in paragraphs 5, 9, and 10 of the plaint:-

"5. That the plaintiff was never served with any notice and he never appeared before the Court and no statement was given by the plaintiff.

That there is no family settlement between the parties and was duty bound to get placed such document on the record and such document was to be proved by the defendant No. 1, but the same was not done.

That the defendants No. 2 to 4 have no right or title over the share of the plaintiff in Khewat No. 131 Khatoni No. 209, 210 of revenue estate of village Charason, Teh. and Distt. Patiala and they were not empowered to file the written statement on behalf of the plaintiff."

The above averments contained in the plaint would show that the plaintiff wanted to assert that he never appeared nor he gave any statement in the Court in the earlier suit.

The paragraphs 5, 6, 8, and 9 of the written statement are also relevant:-

"5. Para No. 5 of the plaint is wrong and denied. It is wrong that the defendant was never served with the summons of the Hon''ble Court. In fact plaintiff was served in that suit and intentionally not appeared in the Court. He was well in the knowledge of the pendency of the suit.

Para No. 6, of the plaint is wrong and denied. The suit has been decided on the basis of family settlement between the parties. Full opportunity was afforded to the plaintiff by the Court.

Para No. 8 of the plaint is wrong and denied. It is wrong that any other person in place of the plaintiff was produced in the Court.

Para No. 9 of the plaint is wrong and denied. In fact the decree was passed between the parties as per family settlement.

A conjoint reading of the aforesaid paragraphs of the written statement makes it clear that the defendants are defending the judgment and decree with the plea that full opportunity was given by the trial Court to Dev Singh and decree was passed as per the family settlement between the parties. It is denied that any other person appeared in the Court in place of Dev Singh.

Learned counsel for the plaintiff has, on the other hand, argued that the admission once made by the defendants cannot be withdrawn, The plaintiff was never summoned nor was served in the earlier case. He never appeared in the Court. He did not file any written statement. He never gave any statement as a witness. Decree was passed in his absence. Defendants have clearly stated in the written statement that Dev Singh had not appeared in the earlier suit. This is an admission which cannot be withdrawn. In the earlier suit, a written statement bearing the signatures of Dev Singh in Punjabi was filed. Dev Singh used to sign in English. His statement is said to have been also recorded in the earlier suit and the statement bears the thumb impression of Dev Singh. It was a fraud played against Dev Singh in the proceedings of the earlier suit. The learned counsel has, therefore, submitted that when the defendants have made an admission in their written statement that Dev Singh did not appear in the earlier suit, how they could be permitted to withdraw the admission and say that Dev Singh had filed a written statement and say that Dev Singh had filed a written statement and had given his evidence in the Court. The defendants had actually obtained the decree on February 20, 1990 by producing some other person in the Court as Dev Singh and, thus, they played a fraud. Admission has been made in the written statements by both sets of defendants. The defendants now want to take the stand that Dev Singh had appeared in the earlier suit. It is, thus, not a case of mistake or inadvertence. Further, the present suit was filed in the year 1991. Both the parties have concluded their evidence. The case is at the stage of arguments. De-novo trial cannot, therefore, be allowed. Further, the defendants have failed to show in what circumstances admission was made by them in the written statement that Dev Singh had intentionally not appeared in the earlier suit.

Learned counsel for the defendants has placed reliance on a decision of this Court in Kehar Singh v. Balraj Singh and Anr.(1991)100 P.L.R. 616. It has been held therein that it is open to a party to show that the admission was wrongly made. Similar view has been expressed in Jagroop Singh and Another Vs. Bhajna, . It has been held that admission made in the written statement can be withdrawn by way of amendment, if it is shown that the admission earlier made was patently erroneous and based on assumed facts.

Supreme Court has, in Chikkam Koreswara Rao Vs. Chikkam SubbaRao and Others, , observed that before the right of a party can be considered to have been defeated on the basis of an alleged admission by him, the implication of the statement made by him must be clear and conclusive. There should be no doubt or ambiguity about the alleged admission.

In Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, , their Lordships of the Supreme Court had again an occasion to consider a question relating to the withdrawal of admission. It was observed that an admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn.

In Basavan Jaggu Dhobi v. Sukhnandan Ramdas Choudhary , it has been again held by their Lordships of the Supreme Court that amendment of written statement by taking a plea contrary to that originally taken is not barred.

Learned counsel for the defendants has, on the strength of the aforesaid decisions, vehemently argued that the plaintiff has come to the Court challenging the judgment and decree dated September 20, 1990 with a specific plea that he never appeared in the Court and the written statement purported to have been filed by him in the earlier suit is the result of fraud. He has categorically stated that he never appeared as a witness in the earlier suit and the signatures on the written statement are not his signatures. He has also led evidence to that effect in the present suit. He has, thus, not acted upon the averments made in Para 5 of the written statement that Dev Singh intentionally did not appear in the earlier suit. Dev Singh had, thus, ignored that admission and has led evidence to show that it was not he, who appeared in the earlier suit but some one else was produced as Dev Singh.

Learned counsel for the plaintiff has, however, further argued that admission once made cannot be allowed to be withdrawn to the detriment of the opposite party. He has placed reliance on a decision of this Court in Ishwar Singh and Ors. v. Sher Singh and Ors.(1988)94 P.L.R. 370. That was a case where amendment of the written statement was sought at the stage of arguments. Amendment sought was with respect to the oral partition. It was held that amendment cannot be allowed as it will result in great prejudice to the plaintiff.

Learned counsel for the plaintiff has further referred to a decision of this Court in M/s Bawa Nihal Singh Gurmeet Singh and Anr. v. Punjab Tractors and Anr.(1989)95 P.L.R. 329 and also in Kartar Singh v. Jangir Kaur and Ors. 1989(1) R.L.R. 482. It has been held that where the amendment introduces entirely different new case and seeks to displace the plaintiff completely from admission made by the defendant in the written statement, such amendment is liable to be rejected.

Further reliance has been placed by learned counsel for the plaintiff on another decision of this Court in Narain Auto Agency and Another Vs. Sat Kartar Engineering Works, . It was held that a party cannot be allowed to set up absolutely a different case by way of amendment of the plea.

In Life Insurance Corporation of India Vs. Atam Parkash Sharma, , It has been held that where a defendant made admission in the written statement on account of the negligence of the counsel, he could not be permitted to withdraw a clear admission.

On a consideration of the controversy, it is found that Dev Singh has himself proceeded in the present suit with the plea that he had never signed the written statement filed in the earlier suit nor he had appeared as a witness. He has, thus, not relied upon the admission made in Pare 5 of the written statement that he had intentionally not appeared in the earlier case. The averments of the written statement also do not make out that the defendants have simply stated that Dev Singh had not appeared in the earlier suit. If that was so, they would not have stated further that written statement was filed by Dev Singh and he had also given his defence.

Learned counsel for the defendants has at the end of his arguments given an undertaking on behalf of the defendants that they would not produce any further evidence after the amendment of the written statement.

It has been seen that the defendants'' case is to the effect that Dev Singh did appear in the earlier suit in the Court and he not only filed his written statement but also gave a statement in the Court. This defence makes it clear that the averments made in paragraph 5 of the written statement are the result of a mistake only and it may be allowed to be withdrawn. The plea seems to have been taken mistakenly when the earlier suit was actually decreed on the basis of the written statement filed by Dev Singh and the statement given by him in the court. It cannot be said that the defendants would in that context take a plea that Dev Singh had not appeared in the earlier suit. It is another thing that the written statement and the statement of Dev Singh have been challenged by Dev Singh on the ground that he had actually never appeared in Court and his signatures have been forged. The trial Court is yet to record its finding on the basis of the evidence produced by both the parties.

In the result, both the revision petitions are allowed. The order of the trial Court, rejecting the application for amendment, is set-aside, Amendment of the written statements, as sought by the defendants, is allowed. Since the learned counsel for the defendants has stated during the course of arguments that the defendants would not produce any further evidence after amendment of the written statements, the trial Court shall allow the amendment and shall thereafter proceed with the suit according to law without affording any opportunity to the defendants for producing any further evidence with regard to the amendment.